In Post-Koken cases, questions arise regarding: (1) the consolidation of tort and UIM claims; and (2) the venue for UIM actions. In Bingham v. Poswistilo, et al., No. 10 CV 6026 (Lackawanna 2011), Judge Nealon of the Court of Common Pleas of Lackawanna County confronted these issues. In that case, the plaintiff was involved in a motor vehicle accident in Lehigh County when struck by vehicles operated by the defendants, Frank Poswistilo and Matthew Ritz. Poswistilo and Ritz resided in Northampton and Lehigh Counties, respectively. At the time of the accident, the plaintiff, Bingham, who resided in Lackawanna County, was insured under policies of insurance issued by the Erie Insurance Exchange. The plaintiffs instituted suit against the tortfeasors and the UIM carrier in the Court of Common Pleas of Lackawanna County setting forth the following claims:
• Count I: Tort claim against Poswistilo
• Count II: Tort claim against Ritz
• Count III: Loss of consortium claim against Poswistilo
• Count IV: Loss of consortium claim against Ritz
• Count V: Underinsured motorist claim against Erie
Preliminary Objections were filed challenging: (1) joinder; and (2) venue.
In addressing the issues, Judge Nealon provides a comprehensive overview of the issues. Judge Nealon noted that there is a divergence of opinion in the Courts of Common Pleas which have discussed the joinder issues. Judge Nealon concludes that joinder of the tort and UIM claims is nonetheless appropriate.
With respect to venue, however, Judge Nealon notes that venue is not proper against tort defendants in the Court of Common Pleas of Lackawanna County. At the same time, he notes that the forum selection clause in the Erie policies mandates litigation of the UIM claims in Lackawanna County. See O’Hara v. First Liberty Insurance Corp., 984 A.2d 938 (Pa. Super. 2009). Accordingly, various opposing public policy and procedural considerations were at work in this matter.
In resolving the dispute, Judge Nealon determined that the Preliminary Objections based upon misjoinder of causes of action were inappropriate and were overruled. However, the Preliminary Objections asserting improper venue were sustained. Thus, the tort and UIM claims were severed. The tort claims were thereafter transferred to the Court of Common Pleas of Lehigh County for adjudication. The decision of Judge Nealon points out the issues involved regarding severance, joinder and venue in Post-Koken cases.
A copy of the decision can be obtained at Swartz Campbell’s website